Case: Gauri Shankar Sinha and Ors. Vs Central Bank of India and Ors.. Patna Debt Recovery Tribunals

JudgesM.R. Farooqui, Presiding Officer
IssueBenami Transactions (prohibition) Act, 1988 - Sections 3, 4; Limitation Act, 1963 (36 Of 1963) - Section 5; Recovery of Debts Due To Banks And Financial Institutions Act, 1993 - Section 29
Judgement DateJune 08, 2005
CourtPatna Debt Recovery Tribunals


M.R. Farooqui, Presiding Officer

  1. These two appeals arising out of the same recovery proceeding RP No. 73/99, having the same facts and same cause of action, therefore, this judgment will dispose off both the appeals byway of this common judgment. The appeal No. 2/2003 is against the order of the learned Recovery Officer passed on 14th January, 2002 while the appeal No. 3/2005 has been filed by the appellant Dr. Anil Kumar Sinha, having aggrieved by the learned Recovery Officer order dated 24th February, 2005 and 16th March, 2005. The appeals have been contested by respondent bank and the purchaser of questioned property-Sumesh.

  2. Facts of the case are that this Tribunal has passed an ex-parte order in PT case No. 607/98 on 20th June, 1999 and issued a certificate to the Recovery Officer for recovery of amount of Rs.74,03,531.87p. and certificate was remitted to the Recovery Officer for its execution. The Recovery Officer has proceeded accordingly to recover the amount mentioned in the certificate passed in favour of respondent bank.

  3. During the pendency of the recovery proceeding, the appellant Mr. Gauri Shankar Sinha and Mr. Dilip Kumar have filed objection petition before the Recovery Officer, who on 14th January, 2002 passed the impugned order and petition of the objector dated 31st August, 2000 has been dismissed. Aggrieved of it, Mr. Gauri Shankar Sinha and Dilip Kumar filed appeal No. 2/2003 against the order dated 14th January, 2002. Earlier on 8th November, 2004, this appeal has been dismissed for want of court-fee and later on by an order dated 5th May, 2005 in MA case No. 18/2005, on depositing of the court-fee, the appeal was restored to its original number and case for hearing. In the meanwhile, on 29th March, 2005 the appellant Dr. Anil Kumar Sinha has filed another appeal No. 3/2005 against the order of Recovery Officer dated 24th February, 2005 in the same RP case No. 73/99 by which, learned Recovery Officer has confirmed the sale of the immovable property of Buddha Colony, at Patna. As both the appeals relate to the same property cause of action and in execution of the same certificate in the same R.P. file and further that the appellant Dr. Anil Kumar Sinha has based his appeal No. 3/2005 upon the order of the Hon'ble High Court of Patna in CWJC No. 2638 of 2004 dated 16th March, 2004 in which it has been observed that the petitioner-appellant has narrated the property belonging to their HUF. Therefore, it has been ordered that all the co-sharers and purchaser to the property should be made party-respondent and they must be called for and all the parties together should be heard, so that, the matter may be settled between the parties once for ever and not in the piecemeal manner. Therefore, respondents were called for and duly heard.

  4. Recovery proceedings file RP No. 73/99 has been called for from the recovery cell and the parties have been heard and case record perused and considered.

  5. In appeal No. 2/2003, the contention of the appellants, Gauri Shankar Sinha and Dilip Kumar Sinha, who are respondent in appeal No. 3/2005 are that their objection petition filed on 31st August, 2000 has been dismissed by the learned Recovery Officer on 14th January, 2002 on the ground that after commencement of the Benami Act, the distribution of property amongst the family members is not enforceable. Therefore, they are aggrieved upon the impugned order and say that the learned Recovery Officer has failed to appreciate that the property in question of Buddha Colony, at Patnawas a joint family property and was though purchased in the name of Anil Kumar Sinha, but the same was acquired by the joint family fund. On 8th July, 1977, Dr. Anil Kumar Sinha was a student of M.B.B.S. and studying in Medical College, Darbhanga. While, disposing of the objection petition, learned Recovery Officer has failed to appreciate the test of Benami Transaction (Prohibition) Act, 1988 as laid down by the Apex Court in 1980 (II) S.C.C. page 327 and 1970 (III) S.C.C. page 72 and 1997(2) P.L.J.R. page 205. The appellant have further stressed that the learned Recovery Officer vide his order dated 11th January, 2000 has attached their property and notice for settling a sale proclamation was issued on 12th June, 2000, but during the entire proceedings, learned Recovery Officer did not attempt to ascertain the relevancy that the property in question was kept as collateral security in terms of equitable mortgage but for want of original documents, the papers were returned by the bank with remarks that the disputed property bears defective title and its chirkut with copy of registered sale deed were also returned. Dr. Anil Kumar Sinha and Dilip Kumar Sinha have been shown co-obligant and guarantor and the letter of Chief Manager admits that the house at Buddha Colony was kept as collateral security and as per minute of the discussions dated 6th July, 1989, there is a decision that the chirkut of the property will be released to Dr. Sinha. The said property was purchased on 8th July, 1977 in the name of Dr. Anil Kumar Sinha who was having no source of earning and land as well as house construction over it is not the property of Dr. Anil Kumar Sinha rather the building belongs to HUF. The appellants have questioned that whether in presence of property of equitable mortgage, the property mortgaged as collateral security can be attached and that too after return of chirkut, this property is subjected to execution. But the learned Recovery Officer has neither considered the factual correctness nor considered the produced evidence. According to them, if it is proved that purchase money came from a person, other than the persons in whose favour, the property is transferred, the purchase is prima facie to be for the benefit of the person who supplied the money.

  6. Another appeal No. 3/2005 filed by Dr. Anil Kumar Sinha is the verbatim copy of the same appeal which has been earlier filed by his father Gauri Shankar Sinha and brother Dilip Kumar Sinha and for further reliefs, he has filed this appeal against the respondent bank and purchaser and all the so-called co-sharers with regard to the same property- in question, situated at Buddha Colony at Patna. He has taken the same grounds for admission of appeal as have been taken by his father and brother in earlier appeal No. 2/2003 alleging the property to be an HUF property, which was kept as a collateral security.

  7. He has further mentioned in the appeal that the HUF property has been attached vide order of the learned Recovery Officer dated 11th January, 2000. Notice for settling sale proclamation was made on 12th June, 2000. According to him, the property of Buddha Colony was kept as a collateral security. Earlier bank authorities returned the original documents to him marking that the land bears defective title. He has mentioned that the property in question which was auctioned and of which sale has been confirmed was purchased by the earning of joint family fund...

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